Attorney General's Reference (No. 25 of 2001); R v Moran (Frank Adam)
| Jurisdiction | England & Wales |
| Judge | lord Justice Mantell,Lord Justice Mantell |
| Judgment Date | 27 July 2001 |
| Neutral Citation | [2001] EWCA Crim 1770 |
| Docket Number | Case No: 200100851R2 |
| Court | Court of Appeal (Criminal Division) |
| Date | 27 July 2001 |
[2001] EWCA Crim 1770
IN COURT OF APPEAL
(CRIMINAL DIVISION)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Mantell
Mr Justice Rougier and
Mr Justice Grigson
Case No: 200100851R2
Mr D Perry and Mr R Mccoubrey (Appeared on Behalf of The Attorney General)
Mr T Holroyde Qc and Mr D Talbot (Appeared on Behalf of The Offender)
Frank Adam Moran Is a 54 Year Old Market Trader. for Something Like Twenty Years He Understated His Income When Making Tax and Self-Assessment Returns. He Was Found Out. He Was Charged With Cheating Her Majesty The Queen and The Public Revenue and Making False Statements Tending To Prejudice Her Majesty The Queen and The Public Revenue With Intent To Defraud. on 9 Th November 2000 He Pleaded Guilty To Both Charges Before Mr Justice Poole Sitting At Chester Crown Court. He Was Sentenced To Nine Months Imprisonment. Arrangements Were Made for a Confiscation Hearing. In Due Course It Was Fixed for 18 Th January 2001 Before His Honour Judge Daniel Again Sitting At Chester. on That Day The Judge Made a Confiscation Order In The Sum of �190,000, That Being The Amount of The Underpayment of Tax Plus Interest. In So Doing The Judge Rejected a Submission Made on Behalf of The Crown That The Whole of The Undeclared Profits, Namely �386,584:00 Was Available for Confiscation. He Set a Term of Two and a Half Years Imprisonment In Default of Payment.
Now The Attorney General Seeks Leave To Refer The Question To This Court. Through Mr Perry of Counsel He Submits That The Judge Has Misconstrued The Relevant Statutory Provisions In Consequence of Which The Confiscation Order Is Unduly Lenient.
We Grant Leave and Treat The Application as The Substantive Hearing.
It Is Common Ground That The Relevant Statutory Provisions Are Those Contained In The Criminal Justice Act 1988 as Unamended By Any Legislation Later Than The Criminal Justice Act 1993. Accordingly The Now Familiar Statutory Assumptions as To Benefit Did Not Apply and The Judge Retained a Discretion as To Whether To Make An Order And, If So, In What Amount.
So Far as Material Section 71 Provides:
(1) "the Crown Court �shall�have Power, In Addition To Dealing With An Offender In Any Other Way, To Make An Order Under This Section Requiring Him To Pay Such Sum as The Court Thinks Fit.
(2) The Crown Court May Make An Order Against An Offender Where �
(A) He Is Found Guilty of Any Offence To Which This Part of This Act Applies; and
(B) It Is Satisfied �
(I) That He Has Benefited From That Offence Or From That Offence Taken Together With Some Other Offence of Which He Is Convicted In The Same Proceedings, Or Which The Court Takes Into Consideration In Determining His Sentence, and Which Is Not a Drug Trafficking Offence; and
(Ii) That His Benefit Is At Least The Minimum Amount.
(4) for The Purposes of This Part of This Act a Person Benefits From An Offence If He Obtains Property as a Result of Or In Connection With Its Commission and His Benefit Is The Value of The Property So Obtained.
(5) Where a Person Derives a Pecuniary Advantage as a Result of Or In Connection With The Commission of An Offence He Is Treated for The Purposes of This Part of This Act as If He Had Obtained as a Result of Or In Connection With The Commission of The Offence a Sum of Money Equal To The Value of The Pecuniary Advantage.
(6) The Sum Which An Order Made By a Court Under This Section Requires An Offender To Pay Must Be At Least The Minimum Amount, But Must Not Exceed �
(A) The Benefit In Respect of Which It Is Made; or
(B) The Amount Appearing To The Court To Be The Amount That Might Be Realised At The Time The Order Is Made, Which Ever Is The Less.
(7) for The Purposes of This Part of This Act The Minimum Amount Is �10,000 Or Such Other Amount as The Secretary of State May Specify By Order Made By Statutory Instrument."
Section 74 Provides:
"(5) References In This Part of This Act To The Value At Any Time (Referred To In Sub-Section (6) Below as The "material Time") of Any Property Obtained By a Person as a Result of Or In Connection With The Commission of An Offence Are References To �
(A) The Value of The Property To Him When He Obtained It Adjusted To Take Account of Subsequent Changes In The Value of Money; Or (B) Where Sub-Section (6) Below Applies, The Value There Mentioned, Whichever Is The Greater.
(6) If At The Material Time He Holds �
(A) The Property Which He Obtained (Not Being Cash) ; or
(B) Property Which In Whole Or In Part, Directly Or Indirectly Represents In His Hands The Property Which He Obtained,
The Value Referred To In Sub-Section 5(B) Above Is The Value To Him At The Material Time of The Property Mentioned In Paragraph (A) Above Or, as The Case May Be, of The Property Mentioned In Paragraph (B) Above, So Far as It So Represents The Property Which He Obtained, But Disregarding Any Charging Order."
Section 102, The Interpretation Section, By Sub-Section (5) Provides:
"references In This Part of This Part of This Act To Property Obtained, Or To a Pecuniary Advantage Derived, In Connection With The Commission of An Offence Include a Reference To Property Obtained Or To a Pecuniary Advantage Derived, Both In That Connection and In Some Other Connection."
There Is No Doubt That as With The Procedures Available In Drug Trafficking Cases Parliament Intended To Invest The Court With Draconian Powers Calculated, In Turn, To Deprive Wrongdoers of Their Ill-Gotten Gains. The Act Must, Therefore, Be Given a Purposive Interpretation. At The Same Time The Power To Confiscate Is Penal In Character and The Provisions By Which It Is Conferred Must Be Construed No More Oppressively Than Is Justified By The Language Used. Or as Bennion (Statutory Interpretation, 3Rd Edition Section 271) Has It
"a Person Should Not Be Penalised Except Under Clear Law."
We Have Little Help From Authority. What Is Plain and Has Been Accepted Before This Court as It Was Before The Judge Is That We Are Dealing With a Pecuniary Advantage. on The Face of Things The Pecuniary Advantage Would Seem To Be Represented By The Underpayment of Tax Which Resulted From The Failure To Fully Disclose Profits. on The Wording of The Act The Pecuniary Advantage Must Be Taken To Include Any Interest Accrued Or Investment Returned Upon That Sum. Giving The Words of Act Their Ordinary and Natural Meaning It Is Hard To See How The Balance of The Profits Which Are The Product of Lawful Trading Can Be Said To Represent a Pecuniary Advantage Which Has Resulted From Or Come About In Connection With The Commission of An Offence. We Reject Mr Perry's Argument That Where There Has Been Systematic and Persistent Non-Disclosure of Profits The Whole Enterprise Is To Be Regarded as Fraudulent and The Proceeds Liable To Forfeiture. It Seems To Us, Therefore, That, Authority...
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